Nelson v. Zinke

KAREN JANE NELSON, Plaintiff,v.RYAN ZINKE, SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, and LAWRENCE LOCKARD, Defendants.

OPINION AND ORDER

Donald
W. Molloy, District Judge United States District Court.

In
October 2016, Plaintiff Karen Nelson ("Nelson")
sued Defendant Ryan Zinke, Secretary of the United States
Department of the Interior ("the Department"), and
Lawrence Lockard ("Lockard") because she was
sexually assaulted on a work scuba diving trip in September
2015. Nelson seeks to hold the Department liable for sexual
discrimination and retaliation under Title VII, 42 U.S.C.
§§ 2000e-2(a)(1), 2000e-3(a), and to hold Lockard
liable for negligence. (Doc. 1.) The Department moved for
summary judgment, insisting that Nelson cannot show liability
under Title VII as a matter of law. (Doc. 20.)

Nelson's
only chance of success on her Title VII discrimination claim
is to show that Lockard was her supervisor. Given the
isolated nature of the incident, Nelson cannot establish a
hostile work environment. And, while Nelson raises a genuine
issue of material fact as to the authority held by Lockard,
she fails to show he could effectuate tangible employment
action against her as a matter of law. Consequently, Lockard
is not her supervisor for the purposes of Title VII. Because
Nelson fails to show that the Department was negligent,
summary judgment in the Department's favor is
appropriate. The Department is also entitled to judgment on
Nelson's Title VII retaliation claim.

Factual
Background

The
facts are largely undisputed, (see Fact Statements,
Docs. 22, 33), but to the extent disputes exist, the factual
record is viewed in the light most favorable to Nelson,
Tolan v. Cotton,134 S.Ct. 1861, 1866 (2014) (per
curiam).

I.
The Montana Ecological Services Office

The
United States Fish and Wildlife Service ("the
Service") is one of many bureaus that make up the
Department. (Doc. 33 at ¶ 1.) The Service itself is
divided into regions and offices. (Id.) Both Nelson
and Lockard worked for the Montana Ecological Services Office
in Region 6. (Id.) The Montana Ecological Services
Office is involved in the oversight and evaluation of
federally funded, licensed, or permitted projects and
provides expertise on environmental contamination issues.
(Id. at ¶ 2.) It has two offices in Montana,
one in Helena and a sub-office in Kalispell. (Id. at
¶ 4.)

Nelson
works in the Helena office as a toxicologist, (id.
at ¶ 6), and Lockard worked in the Kalispell sub-office
as a Fish and Wildlife Biologist, (id. at ¶
10). Nelson was directly supervised in her daily activities
by Jodi Bush in Helena. (Id. at ¶¶ 3, 5,
6.) Lockard was supervised by Ben Conard in Kalispell, with
Bush as his second-line supervisor. (Id. at
¶¶ 9, 10.) Nelson's husband, Brent Esmoil, also
works in the Helena office as a Deputy Field Supervisor.
(Id. at ¶ 5.)

II.
The Dive Team

Region
6 has a small dive team, consisting of eight volunteer
members from several states in Region 6. (Id. at
¶ 12.) Participation in the dive program is voluntary
and available to those who are qualified and express an
interest in conducting dive team missions. (Id.)
Divers must be authorized by their line supervisor to apply
for participation and to take part in any particular dive or
dive training. (Id.) James D. Chandler is the Chief
of the Division of Safety and Occupational Health for Region
6 and has served as the Regional Dive Officer since 2012.
(Id. at ¶ 14.) Because Chandler is not a diver,
Mitch Osborne, the Region 7 Regional Dive Officer, assisted
the Region 6 team by providing program oversight as required
by Service policy. (Id.) Diving operations are
governed by the Diving Safety Chapter of the Service Manual.
(See Doc. 25-1.)

Both
Nelson and Lockard were on the Region 6 dive team. (Doc. 33
at ¶¶ 17, 19.) Lockard had served as the Region 6
Field Dive Officer since February 2015, (id. at
¶ 17), until he retired. Bush authorized Nelson's
participation on the dive team, (id. at ¶ 19),
and since she joined the team, Nelson has conducted dives on
approximately 50 workdays, (id. at ¶ 18).
Certain benefits are extended to members of the dive team
that are not offered to other Service employees. Given the
physical requirements of diving, supervisors are expected to
provide the necessary time, equipment, and training for
divers to meet and maintain authorization standards,
including up to three hours a week for aerobic exercise and
strength building. (Id. at ¶ 13.) Nelson
therefore received three hours of paid physical training per
week. (Nelson Decl., Doc. 34 at ¶ 6.) Dive team members
may also receive dive insurance or paid certifications,
(id. at ¶¶ 7-8), and be eligible for
hazard pay, (Doc. 33 at ¶ 12).

III.
The Incident

On
September 11, 2015, Nelson reported a sexual assault to her
supervisor, Jodi Bush. (Id. at ¶ 21.) At
Bush's request, Nelson submitted a written statement and,
on September 15, 2017, Bush emailed the statement to Special
Agent in Charge for the Service Professional Responsibility
Unit, Keith Toomey. (Id.; see Report, Doc.
26-2.) An undisputed summary of that statement is provided
below:

Between September 8 and 10, 2015, Fish & Wildlife
employees Lawrence Lockard, of the . . . Kalispell suboffice,
Karen Nelson, Toxicologist, and Chris Downs, Fishery
Biologist, Glacier National Park, conducted a dive mission at
Quartz Lake in Glacier National Park. ... Quartz Lake is in a
remote area of Glacier National Park, accessible by an
approximately 6-mile hike from Bowman Lake. Nelson and
Lockard slept in a small, one-room National Park Service
cabin with two separate bunk beds. Downs slept outside
because he did not wish to disturb anyone's sleep due to
his sleep apnea.

On the evening of Wednesday, September 9, 2016 [sic], the
second night at the site, Downs, Lockard, and Nelson ate
dinner and drank a glass of wine. Nelson then took a sleep
aid and went to bed; Downs again slept outside. Nelson
recalls Lockard entering the cabin and getting into his bunk.
She recalled that [Lockard] told her he snored and she had
teased him by saying she had ear plugs and had taken a
sleeping pill.

At some point during the night, Nelson became aware that
someone was in bed with her, but she still was not awake
enough to be aware of what was happening. She stated she
could feel that the person had lifted her long underwear top,
and was fondling her breasts and felt her long underwear
bottoms being moved down. She was groggy and wondering where
she was and reported that she originally thought that her
husband was with her. She started to become more fully awake
and knew that something wasn't right and stood up from
her bunk. Lockard quickly moved from her bunk and crawled
back to his own.

The following day, September 10, 2015, Lockard and Nelson
hiked out of the area while Downs stayed behind to load their
gear onto mules. During the hike, Nelson reported that she
and Lockard discussed what happened the night before. Lockard
told Nelson he had only realized that she had been asleep
once she got up from her bunk. After hiking back to her
vehicle, Nelson drove to a hotel in Kalispell, Montana, where
she stayed the night in a hotel before driving back to Helena
on Friday, September 11, 2015.

(Doc. 33 at ¶ 21 (internal citations omitted).)
Nelson's report also included two photographs, one of the
cabin, (Doc. 26-2 at 4), and one of the bunks inside,
(id. at 5). Based on Nelson's administrative
complaint, some of the comments Lockard made as they hiked
out together included him describing sliding his hand up her
leg to "hit [her] where it counts" and his attempt
to remove her long underwear to "go down on [her]."
(See Doc. 32-4 at 4.) He also claimed he thought she
was receptive. (Id.)

Prior
to Nelson's report, no employee had ever reported to Bush
that they had observed or were the victim of any
inappropriate behavior by Lockard. (Doc. 33 at ¶ 22.)
Nelson had never reported any concerns regarding sexual
harassment or inappropriate behavior by Lockard toward her or
anyone else. (Id.)

IV.
The Department's Response

A.
Initial Response

On
September 12, 2015, the day after Nelson reported the
incident to Bush, Bush notified her supervisors, Nicole Alt
and Michael Thabault. (Id. at ¶ 24.) Bush also
contacted Human Resources and Kathy Dennis, the Assistant
Regional Director for Budget and Administration.
(Id.) Because Nelson and Lockard worked in separate
offices that were located hours apart, according to policy it
was determined that Lockard need not be placed on
administrative leave. (Id.)

The
next day, Sunday, September 13, Bush contacted Michelle
Rockwell, Regional Human Resources Officer for Region 6.
(Id. at ¶ 25.) Bush informed Rockwell of the
allegation and Rockwell concurred that administrative leave
was not appropriate due to the substantial physical distance
between the two employees. (Id.) Bush and Rockwell
discussed informing Lockard that he was to have no contact
with Nelson. (Id.) Bush was told that Carla Goltz
was the Employee Relations Specialist handling the matter.
(Id.) Bush also spoke to Ben Conard, Lockard's
direct supervisor in Kalispell. (Id. at¶29.)
Bush informed Conard of the incident and that Lockard was to
have no contact with Nelson. (Id.)

On
Monday, September 14, Conard and Bush informed Lockard that
he had been accused of sexual misconduct and that he was to
have no contact with Nelson or her husband, was not to travel
to the Helena office, and was to remove himself from any dive
events in which Nelson-or any other female-would be involved.
(Id. at ¶ 30.) Later that week, Bush prepared a
memo, approved by Goltz, reiterating the oral notice given to
Lockard. (Id. at ¶ 31.) The memo clarified that
Lockard was to have no email, phone, or personal contact with
Nelson or her husband. (Id.) The memo was provided
to Conard and delivered to Lockard. (Id.) The memo
also removed Esmoil from Lockard's chain of command.
(Id. at ¶ 32.)

B.
Investigation

On
September 14, Keith Toomey, Special Agent in Charge for the
Service's Professional Responsibility Unit, received a
call from Les Seago, Assistant Special Agent in Charge,
National Park Service, reporting that his office was
investigating criminal allegations regarding the alleged
sexual assault. (Id. at ¶ 33.) The Professional
Responsibility Unit was notified based on the serious
allegations of misconduct; however, because the incident
occurred in the national park and the National Park Service
had an agent in the vicinity, the National Park Service took
the lead in the investigation. (Id.) On September
15, Toomey informed Bush that jurisdiction for the
investigation of the incident was a joint effort of the
National Park Service and Fish and Wildlife Service, that a
criminal investigation was being conducted, and that Human
Resources would not conduct interviews until the United
States' Attorney made a decision about bringing a
criminal complaint. (Id. at ¶ 35.) Toomey also
informed Goltz that the civil investigation would need to
wait until after the criminal case. (Id. at ¶
36.)

On
September 21, Human Resources learned that Lockard had put in
his paperwork to retire with a planned retirement date of
October 31, 2015. (Id. at ¶ 37.) Lockard's
last day in the office was October 29. (Id.)
Although the parties dispute when the Department became aware
the criminal investigation was concluded, (see Id.
at ¶ 39), on October 16, Nelson requested via email that
expedited employment action be taken against Lockard,
(id. at ¶ 41). Ultimately, the Professional
Responsibility Unit decided not to pursue an administrative
investigation until the criminal case was complete,
(id. at ¶¶ 34-35), and due to
Lockard's retirement, no administrative discipline ever
occurred.

C.
Email Contact

Prior
to his retirement, Lockard's contact with Nelson was
limited to two group emails. On September 29, Lockard
announced his impending retirement in an email to 12
recipients, including Nelson. (Id. at ¶ 44.) On
October 1, Conard verbally informed Lockard that he was not
to have any contact with Nelson, including email.
(Id.) On October 29, Lockard sent another group
email to seven recipients, including Nelson, providing a
scientific factual debrief of the September 8-10 dive
mission. (Id. at ¶ 45.) Lockard retired within
hours of sending that email, preventing Conard from
discussing it with him. (Id.)

D.
Criminal Case

On
November 20, 2015, Lockard was indicted for attempted sexual
abuse in violation of 18 U.S.C. § 2242(2) (Count I) and
abusive sexual contact in violation of 18 U.S.C. §
2244(b) (Count II). (UnitedStates v. Lockard, CR
15-37-M-DLC, Doc. 1.) Lockard appeared in United States
District Court on December 8, 2015, pled not guilty, and was
released on conditions. (Id. at Doc. 5) On February
5, 2016, Lockard pled guilty to a Superseding Information
charging abusive sexual contact in violation of 18 U.S.C.
§ 2244(b). (Id. at Doc. 14.) In his plea
agreement, he admitted that he knowingly had sexual contact
with Nelson without her permission. (Id. at Doc. 20,
p. 3.) On May 20, 2016, Lockard was sentenced to six months
custody with five years of supervision to follow and ordered
to pay restitution in the amount of $ 21, 872.49.
(Id. at Doc. 31, 36.) He was also required to
register as a sex offender. (Id. at Doc. 31, p. 3.)

E.Co-Worker and Supervisor Conduct

Near
the end of November 2015, Conard was made aware of a pending
newspaper report about Lockard's indictment. (Doc. 33 at
¶ 47.) Conard informed his supervisees in the Kalispell
sub-office of a possible news article. (Id.) Nelson
argues that Conard did so at the behest of Lockard, as the
two were friends. (Id.) The Department insists that
Conard was told by someone other than Lockard and notified
the office "in order to control the office environment,
so that staff would not be taken by surprise."
(Id.) Following Lockard's arraignment, Agent
Toomey also contacted Bush to inform of possible press
coverage. (Id. at ¶ 48.)

After
the commencement of the criminal proceeding became public,
Nelson reported to Bush in January 2016 that the office's
administrative officer, Sharon Hooley, was treating her
coldly and no longer speaking to her. (Id. at ¶
49.) Nelson felt that this was due to the action taken
against Lockard. (Id.) Bush spoke with Hooley around
January 29, 2016, explaining that the office was a working
environment and that Hooley needed to work with Nelson
regardless of her personal feelings. (Id.) Bush
notified Hooley that if she could not control her behavior,
Bush would need to bring in some assistance. (Id.)
Hooley returned to work and confirmed with Bush that she
would work with Nelson and knew what was expected of her.
(Id.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A month
later, Nelson reported another problem with Hooley.
(Id. at &para; 50.) In February 2016, Hooley sent an
email to staff notifying them of an upcoming self-defense
class. (Id.) Nelson reported that during a birthday
celebration, the self-defense class came up and Nelson stated
that she was not ready for one. (Id.) Nelson stated
that Hooley looked directly at her and asked why she was not
ready yet. (Id.) Nelson felt that this was a
reference to the sexual assault. (Id.) Bush was not
at the event, but met with Hooley on February 24 to discuss
it. (Id.) Hooley denied any ulterior ...

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